§ 23.05.056. Enforcement and Interpretation.

a.

Stop Work Order.

(1)

Whenever any grading, construction or earthwork is being done contrary to the provisions of any approval or of any rule, regulation, law or ordinance, or whenever approval was based upon purposeful misinformation or misrepresentation, or whenever the public health, safety or welfare is endangered, or any work is not in compliance with the plans or permits approved for the project, the Director shall issue a written notice or stop work order on the portion of the work affected. Such notice or order to stop work shall be served upon the property owner and any persons engaged in the doing or causing such work to be done, and any such persons shall forthwith stop such work until authorized by the Director to proceed with the work in writing. The notice or order shall state the reason for the notice and no work shall be done on that portion until the matter has been corrected and approval obtained from the Director. The order may specify actions necessary to restore the site or provide temporary measures for erosion and sedimentation control until the stop work order has been removed.

(2)

It shall be unlawful for any person to commence or continue any work regulated under the provisions of the Grading Ordinance in violation of, or contrary to any stop work notice or stop work order issued in compliance with this Section, except in conformity to the terms of such order or notice of order, or until relief from such order is obtained from the Director or, upon appeal, from the Board of Supervisors.

b.

Appeal. All decisions, interpretations or acts of the Director or Building Official regarding the implementation of the standards of the Grading Ordinance, shall be subject to appeal to the Board of Supervisors in compliance with Section 23.01.042.

c.

Violations and penalties.

(1)

Any person, firm, contractor, or corporation whether as principal, agent, employee or otherwise who shall commence, construct, enlarge, alter, repair, or maintain any grading, excavation, or fill, or cause the same to be done, contrary to or in violation of any provision of the Grading Ordinance is subject to civil and/or criminal action. The Board of Supervisors hereby declares that any grading done contrary to the provisions of this Code is unlawful and a public nuisance, subject to abatement as set forth in Section 23.10.150. The offense may be filed as either an infraction or a misdemeanor at the discretion of the San Luis Obispo County District Attorney.

(2)

In addition to any penalties prescribed, the Director shall submit a written report to the appropriate state licensing or professional registration board or society in cases where contractors or professional consultants violate the provisions of this Code.

(3)

If filed as an infraction and upon conviction thereof, the crime shall be punishable by a fine not to exceed one hundred dollars ($100) for a first violation; a fine not exceeding two hundred dollars ($200) for a second violation of the same ordinance thereafter; and a fine not exceeding five hundred dollars ($500) for each additional violation of the same ordinance thereafter.

(4)

If filed as a misdemeanor, and upon conviction thereof, the punishment shall be a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000), or imprisonment in the county jail for a period not exceeding six months, or by both such fine and imprisonment.

(5)

Any person violating any of the provisions of the Grading Ordinance shall be guilty of a separate offense for each and every day or portion thereof during which any violation of any of the provisions of the Grading Ordinance is committed, continued, or permitted.

(6)

Paying a fine or serving a jail sentence shall not relieve any person from responsibility for correcting any condition which violates any provision of this Title.

(7)

Grading without a permit, or using inadequate or improper grading techniques, can have potentially greater environmental effects. These effects include sedimentation and erosion impacts and excessive native vegetation and wildlife impacts. To address this, the applicant shall include additional "cumulative impact" measures above those required for specific on-site remedial work. These measures shall be proportional in size to the areas disturbed and may include:

(i)

contribution to an off-site revegetation banking program;

(ii)

contribution towards a Resource Conservation District water quality enhancement or other restoration project;

(iii)

reestablishment of nearby degraded habitat;

(iv)

removal of surrounding undesirable weedy plants within a sensitive habitat;

(v)

permanent protection of a proportional amount of comparable land;

(vi)

funding outreach and public education or professional education programs;

(vii)

providing partial funding to assist the erosion control and outreach programs of local Resource Conservation Districts; and/or

(viii)

other measures as determined appropriate by the Director.

(8)

Where the only violation of this Chapter is failure to file an Agricultural Grading Form, as set forth in Section 23.05.032.c, the violation shall be corrected by filing the form after-the-fact. In this circumstance the involved party shall not be subject to penalties, fines, or criminal prosecution.

d.

Injunctions, civil remedies, penalties, and costs.

(1)

Any person, firm, contractor, or corporation whether as principal, agent, employee or otherwise who shall commence, construct, enlarge, alter, repair, or maintain any grading, excavation, or fill, or causes the same to be done, contrary to or in violation of any provision of the Grading Ordinance shall be subject to injunction against such activity and shall be liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000) for each day that the violation continues to exist.

(2)

When the Director determines that any person has engaged or, is engaged, in any act(s) which constitute a violation of provision(s) of the Grading Ordinance, or order issued, the District Attorney or the County Counsel may make application to the Superior Court for an order enjoining such acts or practices, or for an order directing compliance, and upon a showing that such person has engaged in any such acts or practices, a permanent or temporary injunction, restraining order, or other order may be granted by a Superior Court having jurisdiction over the cause.

(3)

Any person, firm, or corporation whether as principal, agent, employee or otherwise who shall commence, construct, enlarge, alter, repair, or maintain any grading, excavation, or fill, or causes the same to be done, contrary to or in violation of any provision of the Grading Ordinance shall be liable for and obliged to pay to the County of San Luis Obispo for all costs incurred by the County in investigating and obtaining abatement or compliance, or which are attributable to or associated with any enforcement or abatement action, whether such action is administrative, injunctive or legal; and for all damages suffered by the County, its agents, officers or employees as a result of such violation or efforts to enforce or abate the violation. (See Section 23.10.050, Recovery of Costs.)

(4)

Until all costs, fees and penalties assessed under the Grading Ordinance are paid in full, no final approval, Certificates of Completion, Certificates of Compliance, Certificates of Occupancy, land use permits or subdivision maps shall be issued or approved by the Planning and Building Department, Public Works Department, other County agencies, or the Board of Supervisors.

(5)

In determining the amount of civil penalty to impose, the Court shall consider all relevant circumstances, including but not limited to, the extent of the harm caused by the conduct constituting the violation; the nature and persistence of such conduct; the length of time over which the conduct occurred; the assets, liabilities and net worth of the persons responsible, whether corporate or individual; any corrective action taken by the persons responsible; and the cooperation or lack of cooperation in efforts toward abatement or correction.

e.

Additional actions and remedies.

(1)

Any person who violates any provision of the Grading Ordinance or who violates any stop work order or notice may also be in violation of the Federal Clean Water Act and/or the State Porter-Cologne Act and may be subject to prosecution under those Acts, including civil and criminal penalties. Section 309 of the Clean Water Act provides significant penalties for any person who violates a permit condition implementing Sections 301, 302, 306, 307, 308, 318, or 405 of the Clean Water Act or any permit condition or limitation implementing any such section in a permit issued under Section 402. Any person who violates any permit conditions of the General Construction Permit is subject to a civil penalty not to exceed twenty-seven thousand five hundred dollars ($27,500) per calendar day of such violation, as well as any other appropriate sanction provided by the Clean Water Act. The Porter-Cologne Water Quality Control Act also provides for civil and criminal penalties which in some cases are greater than those under the Clean Water Act. Any enforcement actions authorized under the Grading Ordinance may also include notice to the violator of such potential liability.

(2)

Any person who knowingly makes any false material statement, representation, or certification in any record or other document submitted or required to be maintained by the Grading Ordinance or the General Construction Permit is subject to civil or criminal action. This may include prosecution for violation of Section 309(c)(4) of the Clean Water Act which provides for a fine of not more than ten thousand dollars ($10,000), or by imprisonment for not more than two years, or both.

(3)

Any person who violates any order issued by the County for violation of the provisions of the Grading Ordinance regulating or prohibiting discharge of both stormwater and non-stormwater, and which causes, or threatens to cause, pollutants to enter the County's stormwater conveyance system shall be liable for such amounts that the County may be fined by the State Water Resources Control Board (SWRCB) or Regional Water Quality Control Board (RWQCB), or the amount of any civil liability imposed on the County for non-compliance with the SWRCB permits.

(4)

Any party found to be in violation of Sections 23.04.450, 23.05.044, or 23.05.048.d in such a manner that poses or threatens to pose a significant danger to the environment or public health and safety, may have its name published in the largest daily newspaper in the San Luis Obispo area.

(5)

Violations of San Luis Obispo County Air Pollution Control District (APCD) Rules or fugitive dust mitigation measures, the California Air Resources Board Asbestos Air Toxics Control Measure (ATCM) for Construction, Grading, Quarrying, and Surface Mining Operations, and the National Emission Standard for Hazardous Air Pollutants may result in required mutual settlements and or significant civil and/or criminal penalties as specified in state and federal law.

f.

Denial of subsequent permits. Violation of any of the provisions of the Grading Ordinance shall be grounds for denying for five years all applications for building permits, grading permits, land use permits, tentative subdivision maps, general plan amendments, and other land development applications proposed for the site on which the violation occurred. The five-year period shall commence from the date of discovery of the violation. The Board of Supervisors may waive or reduce the penalty imposed by this subsection, for good cause. Any such waiver, if granted, shall in no way relieve the owner or applicant for any such subsequent land development application, of their duty to include the effects of the grading or clearing in any environmental analysis performed for the subsequent application, and to restore or rehabilitate the site, provide substitute or compensating resources, or perform other appropriate measures to mitigate the adverse effects of the illegal grading or clearing.

g.

Remedies not exclusive. The remedies identified in the Grading Ordinance are in addition to and do not supercede or limit any other remedies, including administrative, civil and/or criminal remedies pursuant to federal, state, and local law. The remedies provided in the Grading Ordinance shall be cumulative and not exclusive.

[Added 2013, Ord. 3253]

Editor's note

See editor's note, § 23.05.020.